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Constitutional jurisprudence
by Markandey Katju
J
urisprudence is the philosophy of law. In other words
it seeks to explain what law is all about in the most general way.
When we discuss and deal with the law, ordinarily we
discuss specific subjects in law, for example income tax,
labour law, family law, service law, criminal law and the law
of torts. In jurisprudence we do not discuss these specific
topics and instead we discuss such questions as: What is
law? How did it originate? What is its object? What are its
basic concepts?
Therefore when we talk of constitutional jurisprudence
we will have to ask for example: What is a constitution?
What is its purpose? What is its position in the legal system
of the country?
A constitution is the social contract by which the people
in a country are governed. It is a politico-legal document,
unlike ordinary statutes, which are purely legal documents.
A constitution is the fundamental law of the land, and
therefore it prevails over all the other laws in the legal
hierarchy, including statutes made by the legislature. It is
the grund norm, as described by the eminent positivist
jurist Kelsen.
Why have a constitution at all? In fact there was a strong
resistance to setting up a constitution by many feudal
regimes, for example in Czarist Russia andin France
(before the French revolution). This, however, was really
resistance to written constitutions by feudal rulers, who
thought that it would diminish their authority. Unwritten
constitutions (eg in Britain) prevailed everywhere from
ancient to modern times, and in fact no society can do
without a constitution because there has to be system of
governance in every society.
The basic purpose of a constitution, whether written or
unwritten, is to set up the organic law of the land. In other
words, the first purpose of the constitution is to set up the
organs of government in a country and mention their
functions and inter -se relation.
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In feudal monarchies the king was the supreme
legislative, executive and judicial authority. In actual
practice, though, he could not possibly perform all these
functions, and hence he delegated most of these to
delegates, who were described as advisors or councillors or
judges. These persons performed the routine day to day
state functions, but they were accountable to the king and
not to any legislative body. The demand for a written
constitution really meant that these functionaries should be
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accountable to a legislative body elected by the people, and
not to the king.
This was a revolutionary demand of that time, because it
meant converting the king into a mere figurehead, a
constitutional monarch like the British monarch who has
very little powers today. That is why it was fiercely resisted
by the feudal Kings, and often there had to be revolutions
to accomplish it. (In England there had to be two
Revolutions, one in 1645, and the other on 1688).
In modern constitutions, which are almost all written
except in Britain and possibly a few other jurisdictions, all
state authorities are accountable to the people; the
legislators, because they have to face elections, and the
ministers because they are accountable to the legislature.
The constitutional authorities having a fixed tenure of office,
such as the president and judges, can also be removed by
the legislature through the process of impeachment, and
thus they too are accountable to the people.
Thus we see that the first purpose of the written
constitution is to set up state organs which are accountable
to the people. In other words, the main aim of a modern
written constitution is to set up a democratic form of
government.
But that is not its only purpose, there are other purposes
too, and to understand them we have to understand some
theories in political science.
THEORIES OF HOBBES, LOCKE AND
ROUSSEAU
The theories of Hobbes, Locke and Rousseau were all
social contract theories. Social contract theories were all
secular theories. In other words there was no place for God
in them. They were thus in contrast to the divine right
theories (eg the divine right theory of King James I of
England) which said that the king should be obeyed
because he was the viceroy of God, and hence disobedience
to king was disobedience to God.
All the social contract theories had no place for God in
them, and they were thus secular in nature. However there
were sharp differences between them. We may consider
the most important, that is the social contract theories of
Hobbes, Locke and Rousseau.
The theory of the British thinker Thomas Hobbes was
the theory of the absolute sovereignty of the king; that of John
Locke was of limited sovereignty of the king; that of Rousseau
of no sovereignty (not even limited sovereignty) of the king.
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Hobbes was of the view that people are basically evil by
nature. They require some higher authority to check their
evil impulses, otherwise they will be in a state of perpetual
war with each other, and will steal, kill, rape, etc. Thus
peaceful life will be impossible (see his book Leviathan).
Hence a king is required to maintain law and order, and
that is why a king is necessary and he must be obeyed.
Although ostensibly this theory gave absolute power to the
king, there was in fact a catch which came to be noticed later
on. Since, according to Hobbes, a king was needed as an
authority to maintain law, order and peace in society, it follows
that if a king by his deeds or omissions fails to maintain law
and order the people have a right to remove him. Thus, the
right of revolution was inherent in Hobbes’ theory, though not
expressly mentioned, and that is why the king’s supporters,
who initially acclaimed the theory, later became critical of it as
they realised its revolutionary potential.
The theory of the British thinker John Locke (as set out
in 1690 in his Second Treatise on Civil Government) is that
though the king is sovereign, his sovereignty is limited and
not absolute (as Hobbes had proclaimed). Limited by
what? The answer is: limited by the natural rights which
every human being has by the very fact of being a human
being. The king cannot encroach on, or interfere with,
these natural rights which include freedom of speech,
freedom to practice one’s religion, freedom to own or
acquire property, and liberty.
The theory of the French thinker Rousseau is that all
sovereignty belongs to the people, who exercise it through
an agent, whether he is called a king, or Parliament, or
minister or whatever. All these agents, according to
Rousseau, are nothing but the servants of the people and
therefore can be removed by them. The will of the people
is called the general will, and it is supreme. Thus, according
to Rousseau, it is the people, not the king, who are
supreme (see Rousseau’s The Social Contract).
We have mentioned these theories of political science
because we have now to come to the second purpose of the
constitution, that is, to protect the people from the state
authorities when the latter act arbitrarily or in oppressive
manner.
Locke had raised the issue of natural rights in the
people, which even the king could not validly violate. These
natural rights, which were only political slogans at one time
(eg the slogan “Liberty, equality, fraternity” in the French
revolution or “No taxation without representation” in the
American Revolution), were later incorporated as legal
rights in the constitutions of several countries. Examples
include the Bill of Rights in the US Constitution, or the
Fundamental Rights of the Indian Constitution.
It was realised that while ordinarily the elected
representatives would (or should) work for the welfare of
the people who elected them, there may be occasions
where they may not, and may even start oppressing the
people, and hence people must be protected even from
them by making their fundamental rights inviolable.
But who would ensure that the fundamental rights of the
people were protected against invasion by the executive
and even the legislature? This task was given to the
judiciary, either expressly vide Article 32 of the Indian
constitution, or by necessary implication, as in the US
constitution, vide judgment of the US Supreme Court in
Marbury v Madison. Since the constitution was the highest
law of the land, and since these rights were placed in the
constitution itself, any law or act which violated these rights
became void. But who could declare it void? Obviously the
legislature would not declare its own act void. Only the
judiciary acting as a neutral umpire could do so. As Chief
Justice Marshall of the US Supreme Court observed in
Marbury v Madison: “It is emphatically the duty of the court
to declare what the law is.” When there is a conflict
between a constitutional provision and a statute, it is the
former, being the higher law, which will prevail, and the
latter will be declared by the court as ultra vires.
The court is thus the guardian of the rights and liberties
of the citizen, and it will be falling in its duties if it does not
protect them.
THE INDIAN CONSTITUTION
The Indian Constitution is based on western models.
Our founding fathers borrowed the Parliamentary form of
government and independent judiciary from Britain, the
fundamental rights from the US Constitution, the directive
principles from the Irish Constitution, etc.
Thus, the basic principles and state institutions set up in
our constitution were not of our own creation. We
borrowed modern western concepts and modern
institutions from western countries and imposed them
from above on our backward, semi- feudal society.
In contrast, in countries such as England and France
society and the constitutional principles historically grew
together. For instance, the rights of freedom of speech and
liberty were achieved in England and France after long,
arduous, historical struggles by the peoples of those countries
against feudal despotism, for example the British revolution
of 1645 and1688 and the French revolution of 1789.
In India, on the other hand these modern rights and
these modern state institutions were not the product of
our own struggles but were borrowed from the west and
transplanted from above on our backward semi- feudal
society by the constitution makers. Thus, these rights and
these state institutions were not the result of our own
struggles, but were the benefits we received from the
British and the French people. Thus, while our
constitution is modern, our society was (and still is)
backward. The constitution, by incorporating modern
values and setting up modern institutions is pulling society
forward into the modern age, and is thus of great benefit
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to India. For instance, the equality provisions (Arts 14 to
18) lay down modern values, whereas the caste system
which still largely prevails in India represents backward,
feudal values, and provides for inequality.
Similarly, the Parliamentary form of government the
principle that the government is responsible to the
legislature (not to a king) the principle of universal suffrage
(not suffrage restricted to rich people or to males alone),
the principle that the king (or the president as in India)
acts not of his own sweet will but on the advice of the
cabinet, are all principles borrowed from England, where
they had been attained after long, arduous historical
struggles from the 17th to the 19th centuries.
Similarly, the principle of judicial independence was
borrowed by us from England. It was essential to have an
independent judiciary if we wished to protect the
fundamental and other rights of the citizens, because if the
judiciary is not independent it ordinarily cannot have the
courage to declare an act of the legislature or executive as
void, or to direct the executive to act lawfully.
In England up to 1701, judges were not independent
and they held office at the king’s pleasure. Theoretically,
judges were only the king’s agents. The king was the
fountain of justice, and the judicial function was the
sovereign function, ie the function of the king. In fact kings
often used to decide cases themselves, as in the case of the
Mughal Emperors. However as the functions of the state
expanded, the king became too busy in administrative,
military and other matters, and he had no time to decide
cases. Hence, he delegated these functions to his delegates,
who came to be known as judges.
Up to 1701, judges in England had no job security, and
they could be dismissed by the king whenever he chose.
Thus King James I dismissed (and even imprisoned) Lord
Coke, the Chief Justice of England in 1610 because the
latter said that the king could not decide cases personally as
he was not learned in the law.
It was the Act of Settlement, 1701 in the reign of Queen
Anne that gave independence and job security to the
judges. By this Act it was declared:
(1) A judge could not be removed by the king but by the
Parliament by impeachment. This meant it was the legislature, not the executive who could dismiss a judge.
(2) This impeachment proceeding required framing
specific charges against the judge and giving him an
opportunity to defend himself in respect of those
charges (unlike the previous position where this was
not necessary). In England impeachment can be done
by a simple majority vote of The House of Commons,
whereas under the Indian Constitution it requires two
thirds majority of each House of Parliament.
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It is this job security which gives independence to our
judges, as they know that they cannot be thrown out of
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office even if they give a verdict against the government or
the legislature. This gives them courage to act
independently and fearlessly.
We have borrowed Locke’s theory by incorporating
fundamental rights in our constitution which even the
legislature cannot violate, and we have also borrowed
Rousseau’s theory by making the people supreme in our
country.
Thus, while the Indian Constitution sets up state organs,
it also limits their powers, so that they may not become
tools of oppression against the people.
The third purpose of the Indian Constitution is to
declare ideals which the state should seek to achieve. These
are the Directive Principles of State Policy in part IV, which
are borrowed from the Irish Constitution, but also having
features peculiar to the Indian context, eg special
protection to the historically disadvantaged classes such as
Scheduled Castes and Scheduled Tribes.
THE INDIAN CONSTITUTION IN ITS
HISTORICAL CONTEXT
We may now discuss the Indian Constitution in its
historical context. To do so we have to first understand
what is India.
As discussed in great detail in the recent judgment of the
Kailas v The State of Maharashtra, India is broadly a country
of immigrants. About 92 per cent of people living in India
today are descendants of immigrants. The original
inhabitants of India are not the Dravidians (who were also
outsiders) but the pre- Dravidian tribals, such as bhils,
santhals, gonds, todas, etc – the Scheduled Tribes. These
comprise only 8 per cent or so of the Indian population
today (for details see the above-mentioned judgment on
Google).
This explains the tremendous diversity in India – so
many races, castes, religions, languages and cultures. China
is larger than India, both in population and in land area,
but there is broad (though not absolute) homogeneity in
China. For example, all Chinese have Mongoloid faces, 95
per cent belong to one ethnic group called the hans, and
there is one written script (mandarin). On the other hand
India is characterised by its tremendous diversity, which is
broadly due to the fact that it is largely a country of
immigrants.
Hence to bring the country together it is essential that
all the communities and groups be given equal respect and
to be treated equally, and this the constitution does
through such measures as Articles 14-18 (the equality
provisions) and Article 25 (freedom of religion).
When India became independent in 1947 partition riots
were taking place, and large parts of the country were
engulfed in religious madness. Pakistan had declared itself
an Islamic state, and there must have been tremendous
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pressure on Pandit Nehru and our leaders to declare India
a Hindu state. When passions are inflamed, it is a difficult
to keep a cool head. It is the greatness of Pandit Nehru and
other leaders that they did keep a cool head and resisted
the pressure of declaring India a Hindu state. They
declared India a secular state, which was the correct
decision in a sub-continent of such tremendous diversity.
This becomes evident when we see what is happening in
our neighbouring country.
living document, intended to endure for ages to come.
Hence, the principles of its interpretation differ to some
extent from the principles of ordinary statutes. As
observed by the Supreme Court in the Haj act case,
constitutional principles should not be interpreted too
literally. As held by Justice Holmes of the US Supreme
Court (referred to in the above decision) the machinery of
the government would not work if some play is not allowed
at the joints.
The Indian Constitution sets up a federal form of a
government. Federalism caters to regional aspirations. In a
country of such tremendous diversity federalism is
absolutely essential. Thus, the Naga people have their own
government and so do the Tamil people, the people of
Punjab, of Orissa, Assam, Bengal etc. There is also a central
government which is for all. The jurisdiction of the centre
and the states is demarcated by Articles 245-248 and the
seventh schedule.
Thus the rule of strict interpretation, used in
interpreting taxing or criminal statutes, is not applied in
interpretation of constitutional provisions. For instance, in
interpreting the entries in the seventh schedule, a wide
interpretation is given (see recent decision of the Indian
Supreme Court upholding the validity of Tamil Nadu act
relating to financial establishments which duped innocent
investors).
Unity amongst diversity is a basic theme of the Indian
constitution. Article 301, which states that trade and
commerce shall be free throughout the territory of India,
provides for economic unity of India, and political unity
depends upon economic unity. Article 301 in effect implies
that India is one economic unit, and the various states are
not separate units. Thus a manufacturer having his factory
in Tamil Nadu can freely sell his goods in North India, West
India or East India.
No doubt the court has the right to declare a statute to
be unconstitutional, but every effort should be made to
uphold its validity, as invalidating a statute is a grave step
since it amounts to thwarting the will of a coordinate organ
of the state (vide Government of Andhra Pradesh v P Laxmi
dev). For this purpose the court can read down the language
of a statute (see Sri Indra das v State of Assam in which the
Supreme Court read down the Terrorist and Disruptive
Activities Act and the Unlawful Activities Act, and held that
mere membership of a banned organisation will not make
one a criminal).
CONSTITUTIONAL INTERPRETATION AND
JUDICIAL REVIEW
We may conclude by referring to the principles of
interpretation of constitutional provisions and the
principles relating to judicial review of statutes.
Justice Markandey Katju
Judge, Supreme Court of India
As observed by Chief Justice Marshall of the US
Supreme Court in Mc Mulloch v Maryland, a constitution is a
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